The salient questions which lie at the threshold of the investigation necessary in regard to the merits of this controversy are three, and these: First. Was the sale made at an unusual hour? Second. Was the property sold for an inadequate price, which, coupled with other circumstances, authorized the sale to be set aside? Third. Are the defendants, Hinton and Harbison, to be regarded as innocent purchasers, that is, purchasers without notice and in good faith.
Of these in their order.
I. As to the first. The preponderance of the testimony shows the sale occurred just before eleven o’clock. The testimony of Shannon, the sheriff trustee, leaves no doubt on the point if we are to look to his testimony alone; it is conclusive on the point of the sale in question having been made at an unusual hour, and conclusive also of the prevalent custom to make such sales at a later period in the day. He says: “I generally legan my sheriff’s sales from half past one o’clock to two o’clock in the day. In the course of my duties as sheriff I had never made a sale under a trust deed or %mder an exemtion as early in the day as I in fact made this one. I usually made them about half past one after we had got back from dinner. * * * Had it not been for the circumstances I have related, I would not have made the sale at that time of day. In fact, I know Iwouldn’t; it was not the custom.”
The testimony of other witnesses corroborates that of the sheriff as to the customary time of making such sales. Hinton, one of the defendants, says: “Sales are most usually made after dinner.” Osborne, a
The occasional occurrence of some such sporadic instances would be but the exception which proves the rule, and would have no more power to break the bands of the prevalent custom than would the early advent of a single swallow to break the icy chains of winter and bring on untimely wing the balmy influences of the vernal season. The finding of the circuit court was that the sale took place at an unusual hour, and we see no reason to disapprove of the correctness of that conclusion.
II. Was the land sold at an inadequate price? On this point, as might be expected, the opinions of the various witnesses differ considerably. The estimates placed upon the value of the land in litigation varies in amount from $1 to $4 per acre. Now if we strike a mean between the highest and the lowest estimates of value, we find that this will place the reasonable price of the land at $2.50 per acre, which amounts to $400 for the tract; and this is what Hinton asked the representative of the Watkins company for it, when approached by him a week or so after the sale, in order to see if an adjustment could not be affected. This one hundred and sixty acres had a hewed log house on it with a stone chimney, stables and smokehouse, and about ten acres in cultivation, also an excellent spring on the tract, and about forty acres of it, taking differ
The general rule is stated in the books that mere inadequacy of price without more, unless so gross as to shock the moral sense, is insufficient to set aside a sale of land inade under a deed of trust, foreclosure or execution. But in such case, the sale must be fairly conducted in all other respects. Several instances have occurred where this court has set aside sales where the price was inadequate, though not grossly so, where there were other attending circumstances, rendering it inequitable to let the sale in the given instance stand; as for example, in Stoffel v. Schroeder,
In Vail v. Jacobs,
In Stoffel v. Schroeder, supra, we said: “It has always been the doctrine of this court, as well as of courts elsewhere, that the mode of sale referred to, being a harsh method of disposing of the equity of redemption, should be watched with jealous solicitude, and overthrown, if not conducted with all fairness and integrity, and that the trustee is bound to act bona fide, as, in exercising the power, he becomes the trustee of the debtor, and should adopt all reasonable modes of proceeding in order to render the sale beneficial to the debtor, and cannot shelter himself under a bare literal compliance with the conditions imposed by the terms of the power.”
Shaw, C. J. in Howard v. Ames,
Tested by the standard thus fixed by the authorities, it cannot justly be said that the sheriff-trustee fulfilled the measure of his duty if that duty be considered only with reference to the value of the property and the price which it brought.
But we need not look alone to the inadequacy of the price for which the land sold, nor the unusual hour at which the sale occurred; there is yet another element presented by the testimony for consideration, and that is the fact that the agent of the plaintiff, in the exercise of due diligence, and without fault on his part, failed to reach the place of sale in time to participate therein, and prevent a sacrifice of the property. This makes a stronger case than where a party through mistake or inadvertance of himself or agent has failed to attend a sale. Yet, even in cases of that sort, relief has frequently been afforded in equity, on the ground of accident or surprise. Thus in Williamson v. Dale,
In Bixly v. Mead,
In Howell v. Hester, 3 Green. Ch. 266, a second mortgagee, by mistake of her agent, was prevented from attending the foreclosure sale made under a prior incumbrance. The premises sold for an inadequate price, to-wit, $100, when worth $500, to the prejudice of the second incumbrance; sale set aside.
■ So in Seaman v. Biggins, 1 Green. Ch. 214, agent of a second incumbrancer failed to reach the place of sale in time, owing to accident in missing his way, and to another unintentional mistake. The sale was advertised for one o’clock and occurred at half past one. Owing to the mistake and accident aforesaid, the agent did not reach the point until two o’clock. The property ' was sold for only sufficient to satisfy the first mortgage; but was worth, enough to satisfy both mortgages, and the mortgagor was insolvent; the sale was set aside on equitable terms.
In Griffith v. Handley,
In another case the petitioner holding the equity of redemption, and, innocently misled as to the day of sale, was prevented from attending, and in consequence the property was sold for about sixty per cent, of its value. Held, such a case of surprise coupled with inadequacy of price as justified setting the sale aside.
In Hoppock's Ex’r v. Conklin, 4 Sandf. Ch. 582, the defendant in a foreclosure suit, liable for any deficiency, intended to be present at a foreclosure sale, but was prevented by being detained as a juror, and vainly tried to get the court to excuse him, and, failing in this, wrote to an entirely reliable agent to represent him and bid in the property for him. Letter failed to reach agent till an .hour after sale; property bid in by complainants for one third of its value, leaving a large deficiency. Court ordered a resale. It is true these cases from which quotations are just made were foreclosure cases where deeds had not been executed; but they serve to illustrate the doctrine of courts of equity on the point in hand.
In the case at bar the plaintiff had done everything required of him. No just charge of negligence can be laid at his door. He had even gone further than parties in interest had gone in the cases instanced; for he had written a letter to Shannon informing him that they wished an attorney to representthem at the trusteed sale, and this only a few weeks before it occurred. It was the duty of the sheriff to have remembered this letter, and, even if the sale had occurred, at a regular howr, to have postponed the sale for a short time and awaited the arrival of the expected agent. Seaman v. Riggins, 1 Green Ch. loc cit, 218. But the failure of the sheriff to remember, should not operate detrimentally to the interests of the plaintiff, whose only hope for the satisfaction of his debt is the relief he seeks.
III. Are the defendants to be regarded as purchasers without notice and in good faith? There is sufficient testimony in this record to show notice to them before they paid the purchase money. But they cannot occupy the attitude of such purchasers, for the reason that their pleading does not warrant it. Their
In Frost v. Beekman,
- For the reasons aforesaid, judgment affirmed.